At a certain point in every mediation, the haggling over money starts. Inevitably, one party or the other will tell me that they do not want to make the first offer or demand because they do not want to appear “weak” or to bid against themselves.

        In response, I tell them that making the first offer or demand provides them with a golden opportunity: it allows them to set the playing field, to affect the expectations of the other party. Sometimes, the party will accept this wisdom; other times, they want to follow the “conventional wisdom” of letting the other side make the first offer or demand.
 

        In this month’s One Minute Negotiation Tips published on-line by the Los Angeles County Bar Association, Linda Bulmash explains the benefits of defying “conventional wisdom” and of making the first offer. She explains:
   

         “First offers act as an anchor point, drawing the other side into your suggested range. In fact, studies have shown that 85 percent of the time, first offers correlate with the final outcomes. And even if the first offer is not within a reasonable range, it still affects the negotiation’s outcome.”
    

        “For those of us who think we are hip to the game, savvy, and sophisticated, the impact of first offers shows that we are still suggestible. As proof of that theory, participants in a college study were asked to state their Social Security number before estimating the number of physicians in Manhattan.  They all picked numbers that correlated with and were close to their Social Security number.”
   

         “Before deciding whether to make the first offer, ask yourself:
  

           1.  What do I want to achieve by making this offer?

           2.  Do I have enough information to make this  

                offer?

           3.  How do I want to affect the other side’s   

                expectations?

           4.  How will this offer affect the other side’s

                expectations?

           5.  What kind of offers and counteroffers do I need

               to make to strategically move them closer to my

               bottom line?

           6.  Should my offer be firm or flexible?

           7.  How can I propose the offer in a way they can 

                accept?”
 

       . . . Just something to think about.

       So. . . you have decided to mediate your dispute. Now, you must select a “good” mediator. How do you find one and more importantly, how do you define a “good” mediator?
 

       Most people find a “good” mediator either through personal experience (i.e., previous mediations with a particular mediator) or through word of mouth or referral.
       

      The more important question is what do you (and everyone else) mean by “good”?
   

       Recently, the American Bar Association’s (ABA) Section of Dispute Resolution issued its Final Report of its Task Force on Improving the Quality of Mediation. This Task Force was formed in January 2006 “to investigate factors that define high quality mediation practice.” (Id. at 2). It investigated using a series of ten (10) focus group discussions in nine cities across the United States and Canada. The participants in these focus groups included outside counsel, in-house counsel, and non-attorneys in organizations “whose responsibilities included working for parties in mediations.” (Id. at 3). The Task Force also conducted focus sessions with experienced civil mediators. In addition, the Task Force collected more than 100 responses to questionnaires sent to mediation users and to mediators. It also conducted thirteen (13) telephone interviews with mediation participants.    
       

      The Task Force found that each different group of participants identified the same four (4) issues as important to mediation quality:
    

       “Preparation for mediation by the mediator, parties and counsel”
       

       “Case-by-case customization of the mediation process”
       

       “ “Analytical” assistance from the mediator”
    

       “ “Persistence” by the mediator.” (Id. at 3).

      With respect to preparation, many of the participants, “. . . identified preparation by the mediator, the parties, and the parties’ counsel as important for success in the mediation’s outcome. Many focus group participants mentioned liking pre-mediation discussions with the mediator, in part because the discussions prompt them to prepare themselves and their clients for mediation.” (Id. at 6). The survey respondents felt it was very important, if not essential, that the mediator know the file and read the documents: mediator preparation was essential. (Id. at 7).
     

      With respect to case-by-case customization of the mediation process, the participants noted that customization generally occurs during or as part of the preparation phase. (Id. at 12). “Customization is the element of preparation that involves planning a mediation process tailored to the needs of the parties and the dispute. . . . [T]he timing of the mediation, exchange of information before the session and whether to have opening statements, are all elements that can be customized to each dispute.” (Id.) Thus, the participants urged that mediators should not use a “cookie cutter” approach but rather be flexible in how they conduct the mediation process. (Id.)   
  

       The third consistent element involved “analytical” assistance from the mediator. (Id. at 14). The responses to the survey showed that the mediation participants believed the following from the mediator would be helpful: (1) ask pointed questions that raised issues; (2) give analysis of the case, including strengths and weaknesses; (3) make predictions about likely court results; (4) suggest possible ways to resolve issues; (5) recommend a specific settlement; and (6) apply some pressure to accept a specific solution. (Id. at 14).
    

       The last common factor is “persistence.” According to the participants, “persistence” included, “. . . trying to keep people at the table, trying to get the case settled by exerting some “pressure” and trying to get people back to the table after a mediation session fails to settle the case.” (Id. at 17). Ninety-three (93) percent of the mediation users believed that if a matter did not settle at mediation, but there was potential for settlement, then the mediator should follow-up with each side. Clearly, the mediation users wanted the mediator “to be actively engaged in helping them to settle their dispute.” (Id.). They do not want a “potted plant” mediator. They do not want mediators who end the session when the negotiations have gotten difficult – either emotionally or substantively. Rather, they want a mediator - who at such points – will be creative and optimistic that the “difficulties” (if not impasse) can be overcome and a resolution reached. (Id.).    
     

        So. . .in your quest to find a “good” mediator, consider these four (4) questions: (1) Does the mediator prepare for the mediation? (2) Does the mediator approach each mediation uniquely? (3) Does the mediator provide any analytical assistance? and (4) Is the mediator persistent?
     

      . . . Just something (actually quite a lot) to think about! 

       Emotions, emotions, emotions. . . . It seems that we cannot get away from them when we negotiate. In the latest edition of the Harvard Negotiation Newsletter (March 2008, Vol. 11, Number 3), the lead article asks “Will your emotions get the upper hand?” The author notes that “new research suggests that these different emotions [i.e. excitement, anger, and sadness] will predispose you to act and react in very different ways during the talks that follow, regardless of the relevance of these feelings to the issues at hand.” (Id. at 1)
  

       Evidently, research shows that “. . . whether we realize it or not, we often base our decisions on passing moods.” (Id.) In a 2004 study conducted by Harvard Kennedy School of Government Professor Jennifer Lerner, Deborah Small of the Wharton School of Business and George Lowenstein of Carnegie Mellon University, these researchers found a direct link between feelings and decision-making:
  

          “Prior to having participants engage in a buying-and selling task. . . the researchers primed some participants to feel disgust by showing them a graphic, disgusting scene from the movie Trainspotting. Other participants were shown a neutral clip from a nature film. Participants primed to feel disgust seem to feel an “urge to purge” during the financial task that followed. Relative to participants in the neutral condition, disgusted sellers reduced their selling prices and disgusted “choosers” (those choosing between a commodity and money) were less willing to acquire new items. . . .” (Id. at 2).

       In a similar experiment, participant sellers who were primed to become sad by first seeing the movie The Champ, reduced their prices; however, sad choosers were willing to pay more for an item. (Id.)
 

       Recognizing that emotions do, indeed, affect negotiations, the article suggests five (5) ways to avoid the consequences of emotional decision-making:
   

      1. Take a time out: Whenever you are feeling upset or angry during a negotiation (or mediation), take a break so you can let your emotions cool down and you can, once again, become more objective.

      2. Acknowledge your feelings: “Simply being aware that your mood is likely to affect your judgment is an important step. When you label your feelings, you begin to reduce their influence.” (Id. at 3).

      3. Reappraise rather than suppress:  Do not try to suppress emotions that crop up during a negotiation (or mediation). “. . . [O]ur emotions often offer valuable information about the negotiation.” (Id.) So, listen to them and try to figure out what is behind those emotions. . . where are they coming from and why!

      4. Institute accountability:  Make yourself accountable to others or to the mediator for the decisions you make. Require of yourself that you justify your decision to an impartial audience, e.g. the mediator.

      5. Present multiple proposals:  “The timing of the presentation of options influences our susceptibility to harmful emotions. . . . Specifically, we tend to act on our emotional preferences when evaluating options one at a time, but we become more capable of engaging in reasoned analysis when evaluating options jointly.” (Id. at 4). So, whenever possible, present multiple options rather than “take it or leave it” proposals.

      So, in your next mediation –which is nothing more than a facilitated negotiation – recognize that your emotions are very much present and use the tips above to avoid the consequences of negotiating with your heart rather than your head.                                                                         
    

        . . . Just something to think about.

      The other day (March 3, 2008, p. 6) the Los Angeles Daily Journal carried an article by Robert A. Steinberg (a mediator with ADR Services) entitled “Mediation Requires Deal Makers, Not Decision Makers.” His theme is that “mediation is a facilitated negotiation.” (Emphasis original.)  As Mr. Steinberg explains, “negotiations develop based on the skilled application of leverage. The quality of one’s legal case is one leverage point but hardly the only one and sometimes not even the dominate one.” Thus, as Mr. Steinberg notes, while arguing the law and facts at a mediation is the approach often taken by lawyers, it is not always the best approach to use at a mediation. Rather, the lawyer must consider the non-legal issues as well.
     

      A mediator is a facilitator, not a decider of fact and law. Thus, as hard as an attorney might try to “convince” the mediator that “justice” is on the side of her client, it is a futile exercise because quite often there is far more going on (or a lot more at stake) than just the facts and the law.
           

      To resolve cases, the parties must also focus on practicalities: their non-litigation or non-legal interests. How is the litigation affecting their business interests? Is it keeping them away from running the business and making money? Is it interfering with some potential event such as a merger, sale, an initial public offering, et cetera? How is the litigation affecting the tax and accounting aspects of the business? How will any potential settlement affect the parties financially – in terms of taxes and accounting? The parties must also consider “the time value of money, the costs of delay, time away from business or personal pursuits, opportunity costs, trial anxieties, risk aversions. . .” (Id.) and a whole host of non-legal considerations. Sometimes, these other themes, in reality, will predominate over the facts and the law.
 

           The job of the mediator is not to decide who is right and who is wrong: that is for a judge or jury at a trial. They are the ones who literally sit in judgment of the parties. Rather, the job of the mediator is to negotiate a settlement: to cause the parties to focus on much more than just the facts and the law; to get the parties to consider all of the non-legal “stuff” – the financial, physical, emotional, mental, business, et cetera aspects of the situation. For example, is the litigation taking its toll mentally, emotionally or physically on the parties? It is “stressing” them out? Is it causing disruptions in their marriage? Or relationships with others? How much longer do they want (or are able) to “put up” with such stressors?
    

        Only when the parties address all of these “other” issues will they then  be able to craft a deal that meets all of their needs and interests; not just the “legal” ones.
 

           . . . Just something to think about.